I’ve Handled Dog Attacks, But A Pig Attack? What’s The Law On That?

Over the years, I’ve handled a number of dog attack cases, but last week, I read a story about a 3 year old Alabama girl who was injured when she was attacked by a neighbor’s pig.

I don’t want to make light of the story because it sounds like the girl suffered severe injuries.  But it did get me wondering what the law is on pig attacks.  Would a claim against a pig owner be the same as a claim against a dog owner?

Trying to satisfy my curiosity, I did a quick search on Westlaw to see what the law on this issue says.  Amazingly, I don’t think there are any Texas cases involving pig attacks (though I did see something that said pig bites are fourth most common bites reported by vets behind cats, dogs and horses).

After some shrewd legal analysis, I’ve come to the opinion that elements of a pig attack case are the same as a dog attack case.  I’ll spare you the details, but know that what a person making a claim here could probably pursue a strict liability claim if the pig has a history of violence or dangerous behavior or a claim based on the pig owner’s failure to properly handle and secure the pig.

If the story is correct, that the pig has a history of getting out and causing trouble, then the victim probably has a good chance of prevailing under Texas law.  But this actual case happened in Alabama.  Who knows what the law is there (and I’m certainly not going to check)?

The Emergency Room Didn’t Say Anything About A Concussion. Does That Mean I Don’t Have A Brain Injury?

This is a question I’ve seemed to be answering for clients lately.  You are in a wreck or other event.  You go to the emergency room.  They look you over, they never say anything about a brain injury, and they send you home.  Does this mean you don’t have some type of brain injury?

Absolutely not.

Emergency rooms (and even other doctors) are notoriously bad at diagnosing brain injuries.  Why is that?

First, emergency rooms are triage facilities.  They are only really looking for the things that are life-threatening or need to be treated immediately.  Too often, this means that they don’t look for brain injuries unless the brain injury is the type that’s completely obvious.

Second, emergency rooms (and most other doctors) don’t know you.  For the most part, there’s not a readily available test that we can use during a doctor’s visit to say whether you have a brain injury.  The first time a brain injury is diagnosed is usually based on your complaints of your symptoms and comparisons of how you were before you got hurt to how you are after you got hurt.  Doctors can compare your symptoms to common brain injury symptoms, but the doctors have to be looking to put two and two together.  And doctors usually don’t know you well enough to compare your condition from before the wreck to your condition after the wreck.  As a result, it’s often difficult for a doctor to make the diagnoses of a brain injury.

That’s why I tell clients that it’s so important to have friends and family members look for changes in your condition or behavior.  For our clients, we have forms that we give you to fill out that can help figure out what problems you’re having.  That way, you’ll be in a better position to articulate to your doctor the problems you’re having and the doctor can more easily and quickly make a referral to a neurologist or other treating physician.

No Pokemon (ing) While Driving

Fairly typical questions we ask and investigate in car wreck cases are whether the driver was distracted by talking on the phone or texting while driving.  Now, I might have to start another series of questions after the introduction of Pokemon Go.

Pokemon Go is an app game that was released a few days ago, and it’s already taking over the virtual worlds of kids and young adults.

But this morning, I was alerted by a reporter acquaintance that the new game is also quickly becoming a driving hazard.  A quick twitter search confirmed his fears.

I’m inserting a few of the concerning screen shots in the post.  Needless to say, don’t play PokemonGo or engage in other distracting conduct while driving.  Keep yourself focused while driving so your ultimate time for Pokemon isn’t cut short.

IMG_6907 IMG_6908 IMG_6909 IMG_6910 IMG_6911 IMG_6912 IMG_6913 IMG_6914 IMG_6915

“Independent” Medical Exams Going Rogue

A constant problem that we face in cases are doctors who perform “independent” medical exams.  In many cases, insurance companies hire doctors to review our clients’ medical records or to have a one-time exam of our clients and then write a report on how bad our clients are hurt and/or whether our clients’ injuries are related to the wreck or other event that is the basis of the lawsuit.

Oftentimes, these doctors make hundreds of thousands of dollars per year doing these exams.  It’s no surprise then when the reports always come back supporting whatever the insurance company or the insurance company lawyer wanted the report to say.

I’ve written about this problem before, including:

Now, I’ve been alerted to a disturbing blog post by a Michigan personal injury lawyer, Steven Gurstein, describing his experience with an “independent” medical exam.  In the post, entitled “Sticks and Stone and….attorney disbarment. Will the First Amendment lose out when IME doctor files grievance to conceal her testimony in injury cases from the public”, Mr. Gurstein outlines his issues with Dr. Rosalind Griffin, who performed an exam on one of his clients.

I can find a number of posts about abusive medical exams on lawyers’ blogs, but Mr. Gurstein’s stands out for a couple of reasons.

Mr. Gurstein had his client’s exam video-taped, and he went to great lengths to explain in his blog post many of the alleged inconsistencies between what happened in the exam and what the doctor reported.  It’s fascinating to read and is a good primer on the types of problems that you can see in these exams.  I would recommend it for anyone interested in the issue or anyone who might be undergoing an exam.

Dr. Rosalind Griffin was apparently upset with Mr. Gurstein, and Dr. Griffin reportedly filed a grievance against Mr. Gurstein.  That is shocking.  I don’t know the intricacies of Michigan ethics law, and I don’t even know the substance of any allegation (I didn’t read the complaint that Mr. Gurstein linked), but if that happened here in Texas, given what is reported, I would think it was a clear abuse of the process.  It’s the type of thing that I would expect to be summarily dismissed by the bar here.

Even more shocking is that Dr. Rosalind Griffin is apparently on the Attorney Discipline Board that might hear Mr. Gurstein’s case.  How does that happen?  In Texas, we do allow non-lawyers to serve on our grievance hearings, but I can’t imagine that anyone who is as intimately involved in the litigation process as Dr. Rosalind Griffin seems to be, should be on the committee.

I don’t know what will happen to Mr. Gurstein, but if what he’s reporting is truthful, it seems like this is the type of information that we want the public to see, and not something that should be hidden.

I Am Humbled

In the summer of 2012, I visited the West African countries of Liberia and Guinea to investigate a project involving a local school and health clinic.  I came back thinking that I felt more humbled than I would probably ever feel.

I was wrong.

For the past twelve days, my family has hosted one of the leaders from Liberia as he is in the US to work on those projects.  And never have I been more humbled or even embarrassed than this experience.

How do you comfortably take someone to HEB when they come from a country where food is scarce?  How do you comfortably explain to someone about watering the lawn when they come from a country where the lack of clean water kills kids daily?  I could go on and on.

Needless to say, it has been an eye-opening experience for my family.  While we hope to continue our relationship with our visitor, I also hope to look at things through a new eye so that I remember to be grateful for all that we have.

Posted on: October 29, 2015 | Tagged

Sorry For The Lack Of Updates

I know it’s been over a month since I have posted to the site.  But as a trial lawyer, I’ve been busy actually getting ready for trials.  You might think that’s normal, except it’s not.  I recently read a study that most lawyers who call themselves litigators have not had more than one jury trial.  That’s ridiculous.

We are fairly regular at having trials, but  for the last six weeks, I have had three trial settings set in a six week period.  That’s overwhelming and has prevented me from doing things like posting to the site.  Unfortunately, due to scheduling issues, two of the three have been moved and will likely be tried later, but we had to do all of the work to prepare just in case we went forward.

Posted on: May 8, 2015 |

Brain Injury Symptoms: Balance, Dizziness, Smelling, Hearing & Sight

The human brainAs I repeatedly tell clients, brain injuries often go undiagnosed following car wrecks or other accidents because doctors don’t usually know you well enough to make a pre-injury and post-injury comparison of your intelligence, emotional well-being, and general personality.  As a result, it’s often up to you or your family members to notice the symptoms of a brain injury and convey those to medical providers so you get the best care possible.  But to do that, you need to know the symptoms of brain injuries.  This series is designed to help you do that.

These are the final common symptoms on my list.  They seem unrelated, but they’re all related to a change in the senses.

Balance & Dizziness Issues.  Unfortunately, many  of you may experience balance or dizziness issues following your brain injury.  These are very common symptoms of brain injuries and sometimes they can be severe.  Some with brain injuries can feel the immediate problems, but tests can help make the diagnoses.  (With my son’s concussion, he appeared healed and ready to return to baseball until his medical provider ran balance tests on him, which revealed he was still experiencing significant problems despite seeming normal.)  For persons with severe cases of balance and dizziness issues, the person can undergo vestibular therapy that can help fight these symptoms.

Smelling & Tasting.  Oddly enough, many victims of brain injuries experience problems with their sense of smell and taste.  These can run the gamut from completely losing the ability to smell or taste, to a decreased ability to do both, to always experiencing a foul or unpleasant taste or smell.  Unfortunately, there is little that can be done in many of these cases.

Hearing.  Some studies suggest that between 48 and 74% of all people who sustain head trauma will have some type of hearing loss.  These losses could be caused by actual damage to the hearing system (ear canal, etc.) to neurologic problems that are a result of damage to the brain itself.  The treatment options obviously change based on the type and severity of the injury sustained.

Vision.  Recent studies at some VA hospitals have found that more than 74% of the patients with brain injuries had vision problems.  There can be a number of different causes of vision problems.  There can also be a number of different treatment options ranging from waiting, to patching one of your eyes, to vision therapy, to surgery.

VA Misses Mark In Brain Injury Research

Over the years, I’ve had the pleasure of helping a number of clients who have suffered from brain injuries.  And as I’ve written before, I hoped that one small benefit of the wars in Iraq and Afghanistan was that the Veterans Administration and others would use the opportunity to conduct meaningful research on brain injuries that could help both our military and the rest of society.

Unfortunately, I might have had my hopes too high.  Over the weekend, the Austin American Statesman ran a wonderful project by Jeremy Schwartz that outlined many of the problems facing researchers who tried to launch an expensive brain injury research program in Waco.

If you’re interested at all in brain injuries and brain injury research, I urge you to spend some time with the resources at the project.

Even if you’re not particularly interested in brain injuries, I think the project is still a good example of what journalism could be.  In addition to his written articles, which also appeared in the paper, the project includes video stories and links to the actual documents used to substantiate the article.  It is extremely well done.

Car Wrecks: Avoiding Road Rage

My favorite example of Dallas traffic happened several years ago during Texas/OU weekend.  We were in college, driving on I35 (no doubt with the radio blaring), and I saw a driver four lanes over start screaming because he thought someone cut him off.  But he was screaming so loud that we could hear him, through four lanes of traffic, and over our radio.

Thankfully, few of us are that bad, but I’m sure we all get annoyed a bit when driving.  And that’s dangerous for us and all those around us.

Recently, I received an email from AAA that had some tips for avoiding road rage, and I thought I’d share them here.  They are as follows:

  • Cutting people off. When you merge into traffic, use your turn signal and make sure you have plenty of room to enter traffic without cutting someone off. If you accidentally do cut someone off, try to apologize with an appropriate gesture, such as a hand wave. If someone cuts you off, take the high road: Slow down and give them plenty of room.
  • Driving slowly in the left lane. Even if you’re driving the speed limit, if you’re in the left lane and someone wants to pass, be courteous; move over and let them pass so you don’t anger drivers behind you. The left lane is actually intended as a passing-only lane. Otherwise, you’re expected to move to the right. You might be familiar with the signs that read: keep right except to pass. Besides, if the car behind you is speeding, it just might receive some unwanted but justified attention from law enforcement. Also, if you notice a long string of cars behind you on a two-lane mountain road, find an appropriate turnout and let them pass.
  • Tailgating. Drivers can really get angry when another car follows them too closely, so allow adequate room between you and the car in front of you. Follow the two-second rule: when the vehicle in front of you passes a landmark, it should take you at least two seconds to reach the same point. If you’re being tailgated, put on your turn signal and pull over to allow the vehicle to pass.
  • Making obscene or provocative gestures. Never flip off another driver. Almost nothing makes other drivers angrier than an obscene gesture. Even shaking your head may anger some drivers. So be cautious and courteous—signal every time you merge or change lanes, as well as when you turn.

Most of this is common sense, but it’s always good to get a little reminder to help us keep our cool while driving.

 

Posted on: September 5, 2014 | Tagged

Personal Injury Claims: What If My Medical Bills Exceed The Policy Limit

I received this question from a potential client the other day.

Whether you have a car wreck, on-the-job injury, slip and fall, or any other personal injury claim, your claim will usually be paid by an insurance company.  Unless you have a claim against a large commercial business (think Walmart), then you’re only going to be able to recover from the defendant’s insurance policy.Unfortunately, insurance policies don’t pay unlimited amounts.  Policies come with a “policy limits”, the maximum amount that the insurance company will be liable for in any claim.   Except in rare circumstances, that limit is the most the insurance company will ever be required to pay, no matter how bad you’re hurt.  (For a more detailed article on policy limits, click here.)

In some circumstances, a client’s medical expenses can exceed the policy limits.  What do you do then?

Generally, there are two potential courses of action.  First, if you health insurance, then health insurance will pay most of your medical expenses.  Unfortunately, you typically have to reimburse your health insurance company for the amounts that it has paid.  When these medical expenses exceed the policy limits, we will typically negotiate the amount you have to pay back to the insurance company so that we can minimize that amount and put as much money as possible back in your pocket.

Alternatively, if you don’t have health insurance, then those bills are likely still outstanding.  In that case, we’ll negotiate directly with the medical providers.  We can usually work something out.  In these cases, the medical providers usually know, especially when the bills are high, that people don’t have the financial resources to personally pay large healthcare bills.  Thus, they know that the best way to get it is out of a settlement.  So often, we’ll be able to negotiate a resolution where the medical providers are accepting pennies on the dollar.  The medical providers know that something is better than nothing, even if that something isn’t very big.

There are, of course, other ways of solving this problem, but these answers settle most of the problems.

Posted on: September 2, 2014 | Tagged

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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